' ALI AKBAR QURESHI, J.---The controversy of the instant case revolves around the question as to whether the Nikah Registrar appointed under the Muslim Family Ordinance VIII of 1961 is a public servant within the meaning of Section 21 of Pakistan Penal Code. The relevant law applicable on instant case is the Muslim Family Laws Ordinance, 1961, and the Nikah Registrar is to be appointed under Section 5 of the Ordinance ibid, which reads as under: "5 (1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.
(2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licences to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one ward.
(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage."
2. This question was firstly dealt with by the Hon'ble Supreme Court of Pakistan in a landmark judgment cited as Muhammad Arif v. Muhammad Kashwar Ali (PLD 1969 SC 435). The relevant part of the esteemed judgment is reproduced as under: "The next question, therefore, that has been raised is that even a Nikah Registrar licensed under the Muslim Family Laws Ordinance is a public servant either under Article 97 of the Basic Democracies Order or section 21 of the Pakistan Penal Code.
' Article 97 of the Basic Democracies Order is in these terms:- "Every member and every servant of a Local Council, and every other person duly empowered to act on behalf of a Local Council, shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code (Act XLV of 1860)."
' It is manifest that a Nikah Registrar is neither a member of a Local Council nor a person employed in the service of a Local Council, but it is said that he is a "person duly empowered to act on behalf of a Local Council". In support of this contention reliance has been placed on item No.18 of the Fourth Schedule of the Order to show that Registration of Marriages was one of the functions of a District Council. But it is significant that a similar entry is not to be found in the Third Schedule which enumerates the functions of a Union Council. It may also be pointed out here that after the Muslim Family Laws Ordinance came into force in 1961, item No.18 itself was deleted from the Fourth Schedule. It is thus clear that after the Muslim Family Laws Ordinance came into force, registration of marriages was not a function to be undertaken either by a District Council or a Union Council. Indeed it could not be, for, under the Ordinance of 1961 the registration had to be done by a Nikah Registrar in accordance with the provisions of the Ordinance itself as prescribed by sections 3 and 5 thereof and the Union Council was only entrusted with the function of granting a licence to a person applying to act as a Nikah Registrar."
' Another relevant part of the judgment supra is as under: "We come now to consider the question as to whether a Nikah Registrar is a public servant within the meaning of section 21 of the Pakistan Penal Code. The relevant portions of section 21 of the Pakistan Penal Code, so far as material for our present purposes, are as follows "21. The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:- ' Ninth.-Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the . Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty: ' Tenth.-Every officer whose duty it is as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district."
It seems to us that a Registrar acting under the provisions of subsection (5) of section 5 of the Ordinance of 1961 and rule 10 of the Rules framed under the said Ordinance is a person who has to discharge a public duty on being remunerated by fees to be received from the parties. The compulsory registration of marriages provided for by the Ordinance is clearly a public duty undertaken by Government, because, the failure to register exposes the culprits to penal liability under subsection (4) of section 5 of the Ordinance. Under subsection (5) of the said section the Government also provides the forms and registers required to be maintained and prescribes the manner of registration and the fees to be charged therefor. By making non-registration punishable the Government had thus accepted the responsibility of providing the machinery of such registration. This is therefore in every sense of the term a public duty.
' The Nikah Registrar is also, in our view, a person charged with the duty of making any authenticating documents and registers necessary for the ascertainment of the rights of people within the meaning of the tenth clause of section 21 of the Pakistan Penal Code. Rights to succession, maintenance, dower, divorce, legitimacy of children and several other rights may flow from a valid marriage. We have, therefore, come to the conclusion that a Nikah Registrar under the Muslim Family Laws Ordinance is a public servant within the meaning of section 21 of the Pakistan Penal Code. The mere fact that he has under rule 9 of the rules framed under the Ordinance to be remunerated by fees to be received from the parties does not prevent his becoming a public servant, if he is otherwise discharging a public duty."
' Another esteemed judgment of the Hon'ble Supreme Court of Pakistan, on this issue, has been cited as Mst. Zubaida Bibi and others v. Mst. Majidan and another (1994 SCM R 478).
3. In view of the above referred esteemed observation of the Hon'ble Supreme Court of Pakistan, it can safely be ruled, that the Nikah Registrar duly appointed under Ordinance ibid is a public servant and is disqualified under Section 27(2)(e) of the Punjab Local Government Act, 2013, to contest the upcoming local bodies election against any seat.
4. The respondent No.4, who submitted his nomination papers to contest the election for the seat of Chairman Union Council No.42 Rukanpura, Chunian, District Kasur is not qualified to be a candidate in the upcoming local bodies election.
5. Resultantly, this petition is allowed, the orders dated 17.09.2015 and 30.09.2015 passed by the forums below are set aside and the nomination papers filed by the respondent No.4 are rejected.
No order as to costs.